LUDENHAM v. RICHARDS' EXECUTOR, 1 Del. Cas. 458 (1798)

Bayard’s Notebook, 227.[*]

LUDENHAM v. RICHARDS’ EXECUTOR.

Court of Common Pleas of Delaware, Sussex County.
April, 1798.[1]

[*] This case is also imported in Wilson’s Red Book, 101.

[1] This case is dated 1798 by Bayard and follows in order the dates of the cases in this notebook, but the account of the case by Wilson appears among the cases dated 1796.

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Plaintiff offered in evidence a piece of paper containing on one side entries of cash paid to defendant’s testator. The plaintiff could not write nor read. Writing the entries of course were made by a third person. They were not made till after the death of the testator.

This paper was offered as the plaintiff’s book, and the case o Hall and Fields cited by Wilson for plaintiff to show that it was admissible.

Bayard insisted: first, that the person who made the charges ought to be produced to prove them; that the plaintiff, not being able to read writing, should not be allowed upon their being read over to him to prove them true; that the Act of Assembly [1 Del. Laws 328] made the book evidence and allowed the oath to corroborate, but in this case the book in the nature of things was not evidence. The party had not made the charge and did not know that they were truly made. The proof rested solely on his memory refreshed by reading the book. He also insisted that the precedent would be most dangerous: to admit a book for the purpose of charging an estate not made till the death of the party charged.

BASSETT, C. J.,

said that it was not material by whom the entries were made. It was still the book of the party and admissible under the Act of Assembly. The second objection he considered as fatal. He never would admit a book fabricated after the death of a man to prove charges which had no existance during the party’s life. It was rightly said the precedent would be extremely dangerous. Bad men might be encouraged to make accounts against the estates of deceased persons reflecting on the difficulty, nay the impossibility of detection, when the person who alone perhaps could have knowledge of the transaction was for ever removed out of the way.

JOHNS, J., said he was decidedly of opinion that the book was inadmissible and that he fully concurred in what had been said by the Chief Justice as to the danger of admitting accounts not made till after the death of the party charged.

Book rejected.

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